Appellate Division (Civil) :
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Judgment
May 12th, 2015.
Government of Bangladesh and others …..Appellants
vs
Ashraf Ali ……….. Respondent
Town Improvement Act (XIII or 1953)
Section 93A and 93(B)
Town Improvement (Arndt) Act (XXIX of 1987)
Section 73
In spite of repeal of sections 93A and 93B of the Act the pending acquisition of disputed land shall be continued under the provision as if those have not been repealed.
The appellants are directed to inquire into whether full compensation has been paid as per provision of subsection (5) of section 93A or whether compensation has been paid on the basis of a provisional estimate prepared on rough and ready calculation as per section 93B. If the concerned authority find that full compensation of the acquired property was not paid in accordance with subsection (5) section 93A, final assessment has to be made of the acquired land according to sub-section (5) of section 93A—(17&15)
Zamir Ali (Md) vs Secretary, Ministry of Land, 52 DLR 125 ref.
Ekramul Haque. Deputy Attorney-General, instructed by Mvi. Md Wahidullah, Advocate-on-Record.-For the Appellants.
Md Taufique Hossain, Advocate-on-Record-For the Respondent.
Judgment
Syed Mahmud Hossain J: This appeal by leave is directed against the order dated 20-7-1999 passed by the High Court Division in Writ Petition No. 1774 of 1995 making the Rule absolute in part and directing the appellant to take steps for final assessment of compensation in accordance with the provision of sub-section (5) of section 93A of the Town Improvement Act, 1953 arising out of LA Case No. 41 of 1961-62, if not already made.
2. The facts, leading to the filing of this appeal, are precised below:
3. By gazette notification published on 26-1-1989, several hundred acres of land of different mouzas were requisitioned for setting up of Tongi Industrial Town by the former Dhaka Improvement Trust (at present RAJUK) under the provisions of section 93A of the Town Improvement Act, 1953 and those lands were finally acquired by a gazette notification. The land in question was requisitioned in LA Case No. 41 of 1961-62 for the purpose of acquisition under section 93A of the said Act. Admittedly, the respondent (writpetitioner) or his predecessors were paid compensation. There was no dispute that after such requisition and payment of compensation, possession of the land was taken over and subsequently, the said land was allotted to different persons. The main contention of the respondent was that though acquisition was made in 1989 no step was taken by the Government to assess final compensation. It appears from letter dated 22-4-1995 sent by the Secretary, RAJUK, to Deputy Commissioner, Gazipur that assessment of compensation after acquisition was not made and the Deputy Commissioner was requested to take steps for the purpose.
4. Being aggrieved by and dissatisfied with Gazette Notification dated 26-1-1989 and for direction upon the appellants to return the unused land acquired in LA-Case No. ’41 of 1961-62 to the respondents and also for direction upon the appellants to immediately assess the compensation at the present market rate; the respondent (writ petitioner), Md Ashraf AIi, filed the writ petition before the High Court· Division and obtained Rule Nisi in Writ Petition No. 1774 of 1995.
5. The writ-respondents contested the Rule by filing affidavit-in-opposition controverting the material statements made in the writ-petition.
6. The learned Judges of the High Court Division upon hearing parties by the impugned judgment and order dated 26-7-1999 made the Rule absolute in part and’ directing the appellants to take steps for final assessment of compensation in accordance with the provision of sub-section (5) of section 93A of the Town Improvement Act, 1953 arising out of LA Case No. 41 of 1961-62, if not already made.
7. Feeling aggrieved by and dissatisfied with the judgment and order ‘passed by the High Court Division, the appellants (writ-respondents) moved this Division by filing Civil Petition for Leave to Appeal No. 330 of2000, in which, leave was granted on 1-4-2002, resulting in Civil Appeal No. 334, of 2003.
8. Mr Ekramul Haque, learned Deputy Attorney’ General, appearing on behalf of the appellants, submits that the High Court Division directed for assessment of compensation under the provision of section 93A(5) of the Town Improvement Act but section 93A was repealed with effect from 30-4-1987 whereas the writ-petition was· filed sometime in August, 1995 and as such, the assessment ,of compensation in accordance. with the present value of the property was illegal causing failure of justice.
He further submits that the High Court Division did not consider the submission of the appellants that the assessment was made for requisition of land and compensation was paid to the father of the respondent and, as such, the impugned judgment should be set aside.
9. Mr Md Taufique Hossain. learned Advocate-on-Record, appearing on behalf of the respondent, on the other hand, supported the impugned judgment delivered by the High Court Division.
10. We have considered the submissions of the learned Deputy Attorney-General for the leave-petitioners and learned Advocate-on Record for the respondent, perused the impugned judgment and the materials on record
11. Before entering into the merit of the appeal, it is necessary to go through the grounds for which leave was granted. The grounds are quoted below:
“The property was requisitioned in LA Case No. 41 of 1961-62 but the learned High Court Division illegally ordered assessment of property at the rate of the present value causing complete failure of justice.
The High Court Division directed the assessment of compensation under the provision of sub-section (5) of the Section 93A of the Town Improvement Act but Section 93A was repealed with effect from 30-4-1987, whereas the writ petition was filed sometime in August, 1995 and as such, the reassessment of the compensation in accordance with the present value of the property was illegal causing complete failure of justice inasmuch as the High Court Division did not consider the submission of the petitioner that the assessment was made for the requisitioned land and the compensation money was paid to the father of the respondent and therefore has caused complete failure of justice.”
12. By a gazette notification published on 26-1-1981 several hundred acres of land of different mouzas were requisitioned for setting up of Tongi Industrial Town by the then Dhaka Improvement Trust (DIT) at present RAJUK under the provision of Section 93A of the Town Improvement Act and were finally acquired, by a gazette notification. Admittedly, the respondents or their predecessors were paid compensation. There was no dispute that after requisition and payment of compensation, possession of the land was taken over and that subsequently, the said land was allotted to the different persons.
13. When property was requisitioned under Section 93A with a view to its permanent acquisition, the owner of such property shall be paid compensation according to Section 93B of the Town Improvement Act, which is quoted below:
“93B. Payment of compensation’ in advance-Subject to the provision of this Chapter, when a property is requisitioned under Section 93A with a view to its permanent acquisition, the owner of such property shall be offered, and, if agreeable, paid in advance, before possession is taken over under sub-section (3) of Section 93A, a compensation to the extent of-
(a) 100% for homesteads and buildings, (b) 75% for homesteads and orchard, and (c) 50% for vacant nal lands, on the basis of a provisional estimate prepared on rough and ready calculation.”
14. The High Court Division found that according to the provision of Section 93B of the Town Improvement Act provisional estimate as to the valuation of the property belonging to the respondent was prepared on rough and ready calculation and final assessment had not been made according to sub-section (5) of Section 93A of the Town Improvement Act. Admittedly, gazette notification was made in respect of the acquired property.
15. Having gone through Section 93B of the erstwhile Town Improvement Act, we find that AD-34 full compensation of the requisitioned property is not paid under that section. The learned Deputy Attorney-General for the appellants could not produce any paper to show that compensation was paid to the respondent according to the provision of sub-Section (5) of Section 93A of the Town Improvement Act. Therefore, the appellants are directed to inquire into whether full compensation has been paid as per provision of sub-section (5) of Section 93A or whether compensation has been paid on the basis of a provisional estimate prepared on rough and ready calculations, per Section 93B. If the concerned authority of the appellants find that full compensation of the acquired property was not paid in accordance with sub-section (5) section 93A, final assessment has to be made of the acquired land according to sub-section (5) of Section 93A.
16. The Town Improvement Act, 1953 was amended by Act No. XXIX of 1987. Though sections 93A and 93B of the Town Improvement Act were repealed by Act No. XXIX of 1987, the said provisions of the Town Improvement Act shall continue in view of clause-(Uma) of Section 73 of the Act No. XXIX of 1987. Clause-(Uma of Section 73 of Act No. 29 of 1987 is quoted below:
“(?) ????? ?????????? ???????? ?????? ???? ??? ?? ????? ???????????? ?? ??? ????? ??? ??? ?????????? ????????? ?????? ??????? ?????? ??? ?? ??? ?????? ?? ??? ??? ??? ??????? ???????? ?????”
17. In this connection reliance may be placed on the case of Zamir Au (Md) vs Secretary. Ministry of Land, 52 DLR 125 in which it has been held that inspite of repeal of sections 93A and 93B of the Town Improvement Act the pending acquisition of disputed land shall be continued under the aforesaid provision as if those have not been repealed.
In the light of the findings, we are of the view that the appeal should be disposed of. Accordingly, the appeal is disposed of with the observations and direction made in the body of the judgment.
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Judgment
May 12th, 2015.
Government of Bangladesh and others …..Appellants
vs
Ashraf Ali ……….. Respondent
Town Improvement Act (XIII or 1953)
Section 93A and 93(B)
Town Improvement (Arndt) Act (XXIX of 1987)
Section 73
In spite of repeal of sections 93A and 93B of the Act the pending acquisition of disputed land shall be continued under the provision as if those have not been repealed.
The appellants are directed to inquire into whether full compensation has been paid as per provision of subsection (5) of section 93A or whether compensation has been paid on the basis of a provisional estimate prepared on rough and ready calculation as per section 93B. If the concerned authority find that full compensation of the acquired property was not paid in accordance with subsection (5) section 93A, final assessment has to be made of the acquired land according to sub-section (5) of section 93A—(17&15)
Zamir Ali (Md) vs Secretary, Ministry of Land, 52 DLR 125 ref.
Ekramul Haque. Deputy Attorney-General, instructed by Mvi. Md Wahidullah, Advocate-on-Record.-For the Appellants.
Md Taufique Hossain, Advocate-on-Record-For the Respondent.
Judgment
Syed Mahmud Hossain J: This appeal by leave is directed against the order dated 20-7-1999 passed by the High Court Division in Writ Petition No. 1774 of 1995 making the Rule absolute in part and directing the appellant to take steps for final assessment of compensation in accordance with the provision of sub-section (5) of section 93A of the Town Improvement Act, 1953 arising out of LA Case No. 41 of 1961-62, if not already made.
2. The facts, leading to the filing of this appeal, are precised below:
3. By gazette notification published on 26-1-1989, several hundred acres of land of different mouzas were requisitioned for setting up of Tongi Industrial Town by the former Dhaka Improvement Trust (at present RAJUK) under the provisions of section 93A of the Town Improvement Act, 1953 and those lands were finally acquired by a gazette notification. The land in question was requisitioned in LA Case No. 41 of 1961-62 for the purpose of acquisition under section 93A of the said Act. Admittedly, the respondent (writpetitioner) or his predecessors were paid compensation. There was no dispute that after such requisition and payment of compensation, possession of the land was taken over and subsequently, the said land was allotted to different persons. The main contention of the respondent was that though acquisition was made in 1989 no step was taken by the Government to assess final compensation. It appears from letter dated 22-4-1995 sent by the Secretary, RAJUK, to Deputy Commissioner, Gazipur that assessment of compensation after acquisition was not made and the Deputy Commissioner was requested to take steps for the purpose.
4. Being aggrieved by and dissatisfied with Gazette Notification dated 26-1-1989 and for direction upon the appellants to return the unused land acquired in LA-Case No. ’41 of 1961-62 to the respondents and also for direction upon the appellants to immediately assess the compensation at the present market rate; the respondent (writ petitioner), Md Ashraf AIi, filed the writ petition before the High Court· Division and obtained Rule Nisi in Writ Petition No. 1774 of 1995.
5. The writ-respondents contested the Rule by filing affidavit-in-opposition controverting the material statements made in the writ-petition.
6. The learned Judges of the High Court Division upon hearing parties by the impugned judgment and order dated 26-7-1999 made the Rule absolute in part and’ directing the appellants to take steps for final assessment of compensation in accordance with the provision of sub-section (5) of section 93A of the Town Improvement Act, 1953 arising out of LA Case No. 41 of 1961-62, if not already made.
7. Feeling aggrieved by and dissatisfied with the judgment and order ‘passed by the High Court Division, the appellants (writ-respondents) moved this Division by filing Civil Petition for Leave to Appeal No. 330 of2000, in which, leave was granted on 1-4-2002, resulting in Civil Appeal No. 334, of 2003.
8. Mr Ekramul Haque, learned Deputy Attorney’ General, appearing on behalf of the appellants, submits that the High Court Division directed for assessment of compensation under the provision of section 93A(5) of the Town Improvement Act but section 93A was repealed with effect from 30-4-1987 whereas the writ-petition was· filed sometime in August, 1995 and as such, the assessment ,of compensation in accordance. with the present value of the property was illegal causing failure of justice.
He further submits that the High Court Division did not consider the submission of the appellants that the assessment was made for requisition of land and compensation was paid to the father of the respondent and, as such, the impugned judgment should be set aside.
9. Mr Md Taufique Hossain. learned Advocate-on-Record, appearing on behalf of the respondent, on the other hand, supported the impugned judgment delivered by the High Court Division.
10. We have considered the submissions of the learned Deputy Attorney-General for the leave-petitioners and learned Advocate-on Record for the respondent, perused the impugned judgment and the materials on record
11. Before entering into the merit of the appeal, it is necessary to go through the grounds for which leave was granted. The grounds are quoted below:
“The property was requisitioned in LA Case No. 41 of 1961-62 but the learned High Court Division illegally ordered assessment of property at the rate of the present value causing complete failure of justice.
The High Court Division directed the assessment of compensation under the provision of sub-section (5) of the Section 93A of the Town Improvement Act but Section 93A was repealed with effect from 30-4-1987, whereas the writ petition was filed sometime in August, 1995 and as such, the reassessment of the compensation in accordance with the present value of the property was illegal causing complete failure of justice inasmuch as the High Court Division did not consider the submission of the petitioner that the assessment was made for the requisitioned land and the compensation money was paid to the father of the respondent and therefore has caused complete failure of justice.”
12. By a gazette notification published on 26-1-1981 several hundred acres of land of different mouzas were requisitioned for setting up of Tongi Industrial Town by the then Dhaka Improvement Trust (DIT) at present RAJUK under the provision of Section 93A of the Town Improvement Act and were finally acquired, by a gazette notification. Admittedly, the respondents or their predecessors were paid compensation. There was no dispute that after requisition and payment of compensation, possession of the land was taken over and that subsequently, the said land was allotted to the different persons.
13. When property was requisitioned under Section 93A with a view to its permanent acquisition, the owner of such property shall be paid compensation according to Section 93B of the Town Improvement Act, which is quoted below:
“93B. Payment of compensation’ in advance-Subject to the provision of this Chapter, when a property is requisitioned under Section 93A with a view to its permanent acquisition, the owner of such property shall be offered, and, if agreeable, paid in advance, before possession is taken over under sub-section (3) of Section 93A, a compensation to the extent of-
(a) 100% for homesteads and buildings, (b) 75% for homesteads and orchard, and (c) 50% for vacant nal lands, on the basis of a provisional estimate prepared on rough and ready calculation.”
14. The High Court Division found that according to the provision of Section 93B of the Town Improvement Act provisional estimate as to the valuation of the property belonging to the respondent was prepared on rough and ready calculation and final assessment had not been made according to sub-section (5) of Section 93A of the Town Improvement Act. Admittedly, gazette notification was made in respect of the acquired property.
15. Having gone through Section 93B of the erstwhile Town Improvement Act, we find that AD-34 full compensation of the requisitioned property is not paid under that section. The learned Deputy Attorney-General for the appellants could not produce any paper to show that compensation was paid to the respondent according to the provision of sub-Section (5) of Section 93A of the Town Improvement Act. Therefore, the appellants are directed to inquire into whether full compensation has been paid as per provision of sub-section (5) of Section 93A or whether compensation has been paid on the basis of a provisional estimate prepared on rough and ready calculations, per Section 93B. If the concerned authority of the appellants find that full compensation of the acquired property was not paid in accordance with sub-section (5) section 93A, final assessment has to be made of the acquired land according to sub-section (5) of Section 93A.
16. The Town Improvement Act, 1953 was amended by Act No. XXIX of 1987. Though sections 93A and 93B of the Town Improvement Act were repealed by Act No. XXIX of 1987, the said provisions of the Town Improvement Act shall continue in view of clause-(Uma) of Section 73 of the Act No. XXIX of 1987. Clause-(Uma of Section 73 of Act No. 29 of 1987 is quoted below:
“(?) ????? ?????????? ???????? ?????? ???? ??? ?? ????? ???????????? ?? ??? ????? ??? ??? ?????????? ????????? ?????? ??????? ?????? ??? ?? ??? ?????? ?? ??? ??? ??? ??????? ???????? ?????”
17. In this connection reliance may be placed on the case of Zamir Au (Md) vs Secretary. Ministry of Land, 52 DLR 125 in which it has been held that inspite of repeal of sections 93A and 93B of the Town Improvement Act the pending acquisition of disputed land shall be continued under the aforesaid provision as if those have not been repealed.
In the light of the findings, we are of the view that the appeal should be disposed of. Accordingly, the appeal is disposed of with the observations and direction made in the body of the judgment.
